Snow v. Smith, Appellate Case No. 2013–002727.

CourtCourt of Appeals of South Carolina
Writing for the CourtKONDUROS, J.
Citation416 S.C. 72,784 S.E.2d 242
Parties Elizabeth L. SNOW (f/k/a Elizabeth S. Bell), Mark S. Campitella, Chrissie E. Campitella, Henry D. Gehlken, Sr., Vivian S. Gehlken, Kenneth W. Kelly and Anita B. Kelly, Stephen F. Linder, Sr., Jackie Bower Linder, and Kathryn A. McDaniel, appellants, v. Judson P. SMITH, Christy Brabham Bell, Charles S. Coleman, Jr., J. Thomas Coleman, Jacob C. Coleman, Valiska C. Freeman, George Arthur Stoudenmire, George Arthur Stoudenmire as trustee for the benefit of William E. Stoudenmire, Linda B. Stoudenmire, Stacey S. Dershaw f/k/a Stacy Mitchell Stoudenmire and Laura Brittany Stoudenmire, and Trust "B" Created by U/W Everett L. Stoudenmire and Valiska F. Coleman, respondents.
Docket NumberNo. 5386.,Appellate Case No. 2013–002727.
Decision Date02 March 2016

416 S.C. 72
784 S.E.2d 242

Elizabeth L. SNOW (f/k/a Elizabeth S. Bell), Mark S. Campitella, Chrissie E. Campitella, Henry D. Gehlken, Sr., Vivian S. Gehlken, Kenneth W. Kelly and Anita B. Kelly, Stephen F. Linder, Sr., Jackie Bower Linder, and Kathryn A. McDaniel, appellants,
v.
Judson P. SMITH, Christy Brabham Bell, Charles S. Coleman, Jr., J. Thomas Coleman, Jacob C. Coleman, Valiska C. Freeman, George Arthur Stoudenmire, George Arthur Stoudenmire as trustee for the benefit of William E. Stoudenmire, Linda B. Stoudenmire, Stacey S. Dershaw f/k/a Stacy Mitchell Stoudenmire and Laura Brittany Stoudenmire, and Trust "B" Created by U/W Everett L. Stoudenmire and Valiska F. Coleman, respondents.

Appellate Case No. 2013–002727.
No. 5386.

Court of Appeals of South Carolina.

Heard Sept. 16, 2015.
Decided March 2, 2016.


784 S.E.2d 245

Thomas Bailey Smith, of Smith Law Firm, PA, of Mount Pleasant, for appellants.

Harry Clayton Walker, Jr. and Thomas E. Andrews, III, both of Walker & Reibold, LLC, of Columbia, for respondents.

KONDUROS, J.

416 S.C. 79

In this easement action, a group of homeowners contend the master-in-equity erred in finding (1) their easement was limited to ingress and egress and (2) the restrictive covenants do not apply to the Lake Access Lot. We affirm in part, reverse in part, and remand.

FACTS/PROCEDURAL HISTORY

Charles S. Coleman, Sr. and E.L. Stoudenmire (Developers) developed Hilton Place subdivision in 1983. The Restrictions were filed on October 12, 1983. The Restrictions stated, "No lot or property conveyed hereunder shall be used for any other than private residential purposes of one family, except by and with written consent and approval of Grantors." Additionally, they stated, "No building, barn, outbuilding, fence, garage or structure of any kind or alterations or additions thereto shall be erected, placed or made on any lot hereby conveyed; no residence containing less than 1,200 square feet of living space shall be erected on any lot...." The Restrictions also provided any lot or property conveyed could only be used for "private residential purposes of one family, except by and with written consent and approval of the Grantors." The Restrictions banned any "noxious or offensive activity" on the lots and anything that "becomes an annoyance or nuisance to the neighborhood." They likewise barred any "condition or situation" on any of the lots that was "a nuisance or otherwise detract[ed] from the desirability of the neighborhood as a residential section." Further, the Restrictions provided "[t]hese covenants, conditions and restrictions are for the benefit of the Grantors who may change or modify the terms contained herein at any time." The Restrictions also stated

416 S.C. 80

they were "imposed upon all those lots shown on a plat ... dated September 19, 1983" (1983 Plat). The 1983 Plat shows several numbered lots and a lot with no number described as "Lake Access" (Lake Access Lot). The Developers never formed a homeowners' association although a group of homeowners attempted to form one at one point.

When Elizabeth Snow (f/k/a Elizabeth S. Bell) bought her lot in 1990, the deed stated, "Also conveyed her[e]with is an easement for the use and enjoyment by the lot owner and the lot owner[']s immediate family to the Lake Access Lot shown on the recorded subdivision lot, said easement to be appurtenant to the land her[e]in conveyed." Additionally,

784 S.E.2d 246

her purchase contract stated, "Lake Access Lot is available for purchaser's use at time of closing." Henry D. Gehlken, Sr. and Vivian Gehlken's deed stated the conveyance included "a non-exclusive access to the water of Lake Murray through the lake access as shown on [the 1983 P]lat[,] which shall run with the land." Other homeowners' deeds make no mention of lake or water access but do indicate they are subject to all easements of record.

A Confirmatory Amendment to the Restrictions was filed on February 5, 1999. It indicated the Restrictions only applied to the numbered lots. It also stated, "Nothing contained herein shall be construed to impose any covenants, conditions or restrictions on any other property shown on the aforesaid plat." The Amendment further provided, "In the event this amendment conflicts with any other provisions of the Restrictions ... this amendment shall supersede and govern."

In July 2010, the heirs1 of the Developers deeded the Lake Access Lot to Judson P. Smith and Christy Brabham Bell (n/k/a Jennifer Christy Brabham) for $25,000. Smith and Bell built a dock, gazebo, fire pit, deck, and storage building containing a toilet2 on the Lot. They also widened and lengthened the boat ramp.

416 S.C. 81

Several homeowners3 brought suit against Smith and Bell as well as the Heirs (collectively, Respondents) for declaratory judgments and breach of covenants. They also sought as to the Heirs to set aside the conveyance of the Lake Access Lot due to fraud, negligence, and breach of fiduciary duty.

At trial, Snow testified she interpreted her sales contract and deed as allowing her to use the entire Lake Access Lot at any time. Snow believed the outhouse on the Lake Access Lot negatively affected her property value because "it is an outhouse. It's a bathroom outside." She thought the outhouse diminished the value of her property by $25,000. She acknowledged the Lake Access Lot now being maintained instead of overgrown as it previously had been helped her property value. However, she stated her home value had decreased $19,000 since she refinanced her home in 2006.

Another owner, Stephen Linder, testified the outhouse decreased his property value by $10,000 to $25,000. He believed it was "a detriment to the neighborhood" "[b]ecause it's an outhouse where people go to the bathroom outside." Linder further indicated he could hear noise when Smith and Bell occasionally had parties on the Lot.

Kathryn Ann McDaniel, also a homeowner, testified once when she believed Smith and Bell were having a party, she had noticed an odor coming from the Lake Access Lot that smelled like an outhouse. She believed her property value had decreased by at least $20,000. She stated she had arrived at that figure "I guess probably just from what I think I would pay for something with an outhouse next door."

Homeowner Vivian Gehlken testified her property value had decreased $50,000 but she attributed that to the economy. However, she thought the outhouse had a negative effect on her property and the neighborhood. She provided she had not used the Lake Access Lot since Smith and Bell bought the Lot because it made her feel "uncomfortable."

Kenneth Kelly also testified as a property owner in the subdivision. He believed the outhouse and his believed loss of

416 S.C. 82

lake access had a negative effect on his property value in the amount of $20,000 to $25,000. Chrissie Campitella, another homeowner as well as a real estate broker, testified her property value had decreased by $25,000 because the outhouse was an eyesore. She also indicated

784 S.E.2d 247

she had seen the boat access ramp blocked about two to three times a month.

Bell testified she and Smith lived together in a house in the subdivision and had bought the Lake Access Lot together. She stated that when they bought the Lot, it was very overgrown and had a great deal of construction debris and trash on it. She provided they used a lot of heavy equipment to remove the debris. Bell considered the outhouse to be a bathroom because it was on a permitted septic tank. She indicated the South Carolina Department of Health and Environmental Control (DHEC) had issued the permit. She testified the Lot had electricity and currently had one television. She and Smith moved an additional, bigger television to the Lot for parties during football games.

Smith testified that although vehicles would be parked in the driveway of the Lake Access Lot from time to time, they did not block the access to the lake because one could easily go around them. He acknowledged the driveway had been blocked at times during the construction but it was now completed. He also provided he does leave his truck in the driveway while he is putting his boat in the water but moves it as soon as his boat is unloaded. He also indicated he parks his golf cart in the driveway while unloading supplies but moves it as soon as it is unloaded. He stated that when he and Bell bought the Lot, "it was a dump. You couldn't get to the water." Smith indicated the grass on the upper part of the Lot was cut but the lower part towards the water was not. He provided he had to bush hog the property to even get to the water. He also testified that after he had cleared all the debris off the Lot, they had to haul in large amounts of dirt. He indicated they brought in a gazebo and built a new deck, fire pit, and dock. He stated they had concrete poured to widen and lengthen the boat ramp because due to the water level, they could not launch a boat from it when they...

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6 practice notes
  • Kennedy v. Richland Cnty. Sch. Dist. Two, Appellate Case No. 2015-000613
    • United States
    • Court of Appeals of South Carolina
    • July 24, 2019
    ...argument is largely conclusory. Thus, we find Appellants have abandoned this issue and we need not address its merits. See Snow v. Smith , 416 S.C. 72, 91 n.7, 784 S.E.2d 242, 252 n.7 (Ct. App. 2016) (finding appellants abandoned their argument because they failed to provide legal citations......
  • Bank of N.Y. Mellon Trust Co. v. Grier, Appellate Case No. 2013–002403.
    • United States
    • Court of Appeals of South Carolina
    • March 2, 2016
    ...the administration of an escrow account). To the contrary, our review of the record reveals GMAC controlled the use of the escrow funds.416 S.C. 72 Accordingly, because GMAC was not Grier's agent, we find the circuit court properly ruled that Grier's breach of contract claim failed as a mat......
  • Anchorage Plantation Homeowners Ass'n v. Walpole, Appellate Case No. 2016-000281
    • United States
    • Court of Appeals of South Carolina
    • July 25, 2018
    ...Lifestyles Inc. could not grant that property access to or use of the Association's private road and boat dock. See Snow v. Smith, 416 S.C. 72, 89-90, 784 S.E.2d 242, 251 (Ct. App. 2016) (stating a developer may "amend restrictive covenants running with the land or impose new restrictive co......
  • Anchorage Plantation Homeowners Association v. Walpole, 2018-UP-337
    • United States
    • Court of Appeals of South Carolina
    • July 25, 2018
    ...Lifestyles Inc. could not grant that property access to or use of the Association's private road and boat dock. See Snow v. Smith, 416 S.C. 72, 89-90, 784 S.E.2d 242, 251 (Ct. App. 2016) (stating a developer may "amend restrictive covenants running with the land or impose new restrictive co......
  • Request a trial to view additional results
6 cases
  • Kennedy v. Richland Cnty. Sch. Dist. Two, Appellate Case No. 2015-000613
    • United States
    • Court of Appeals of South Carolina
    • July 24, 2019
    ...argument is largely conclusory. Thus, we find Appellants have abandoned this issue and we need not address its merits. See Snow v. Smith , 416 S.C. 72, 91 n.7, 784 S.E.2d 242, 252 n.7 (Ct. App. 2016) (finding appellants abandoned their argument because they failed to provide legal citations......
  • Bank of N.Y. Mellon Trust Co. v. Grier, Appellate Case No. 2013–002403.
    • United States
    • Court of Appeals of South Carolina
    • March 2, 2016
    ...the administration of an escrow account). To the contrary, our review of the record reveals GMAC controlled the use of the escrow funds.416 S.C. 72 Accordingly, because GMAC was not Grier's agent, we find the circuit court properly ruled that Grier's breach of contract claim failed as a mat......
  • Anchorage Plantation Homeowners Ass'n v. Walpole, Appellate Case No. 2016-000281
    • United States
    • Court of Appeals of South Carolina
    • July 25, 2018
    ...Lifestyles Inc. could not grant that property access to or use of the Association's private road and boat dock. See Snow v. Smith, 416 S.C. 72, 89-90, 784 S.E.2d 242, 251 (Ct. App. 2016) (stating a developer may "amend restrictive covenants running with the land or impose new restrictive co......
  • Anchorage Plantation Homeowners Association v. Walpole, 2018-UP-337
    • United States
    • Court of Appeals of South Carolina
    • July 25, 2018
    ...Lifestyles Inc. could not grant that property access to or use of the Association's private road and boat dock. See Snow v. Smith, 416 S.C. 72, 89-90, 784 S.E.2d 242, 251 (Ct. App. 2016) (stating a developer may "amend restrictive covenants running with the land or impose new restrictive co......
  • Request a trial to view additional results

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